Petition for Writ of Certiorari — Apodaca v. Merit Systems Protection Board

Supreme weary U.S.

FILED

10-753 pe 7-201

NOFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

Antonio M. Apodaca

Petitioner,

Vy

Merit Systems Protection Board

Respondent

On Petition For Writ of Certiorart

To The UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Antonio M. Apodaca, Pro Se

14221 SW 146!" Terrace

Miami, FL 33186-7208

(305) 232-7024 (Home Phone)

(305) 498-7366 (Cell Phone)

Questions Presented for Review

Is it permissible for a federal agency to breach a tenured

federal employee's constitutionally protected “vested

interest in his employment” and his right. to exercise

“Free Will’ without affording the employee his Fifth

Amendment. Right to “Due Process”?

Is a credibility determination necessary when the issue in

question involves an individual's exercise of “Free Will’?

Is the barring of a tenured federal employee from his

workplace an Adverse Action?

Parties to Proceedings

The Caption shown accurately identifies who the

petitioner(s) and who the respondent(s) are in this Court

Corporate Disclosure Statement

A corporate disclosure statement is not applicable because

the Petitioner is an individual and not a corporate entity

Table of Contents

Item/Topic

Questions Presented for Review

Parties to Proceedings

Table of Contents

Table of Authorities

Petition for Writ of Certiorart

Court of Appeals for the Fed. Cir. Decision

Court of Appeals Order Denial of Rehearing

Court of Appeals Judgment/Mandate

MSPB Ad’s Initial Bench Decision

MSPB Final Order

Certificate of Comphance

Certificate of Service

Pages

Petition for Writ of Certiorari

Table of Authorities

Authority

Fifth Amendment

5 U.S.C. 7513

5 U.S.C. 2301(b)(6)

5 U.S.C. 2302(b)(1 2)

28 U.S.C. 2101(c)

ISCMIAMINST 5000.2

CGD SEVENINST 5512.2c

FMLA Section 6384 and 6385

Loudermull, 470 U.S. 543

Mathews v. Eldridge, 424 U.S. 319, (1976)

Arnett v. Kennedy, 416 U.S. 134, 142

Bd. Of Regents v. Roth, 408 U.S. 564

Constantineau, 400 U.S. 433

Wieman v. Updegraff, 344 U.S. 183

Joint Anti-Fascist Refugee Committee

v. McGrath, 341 U.S. 123

United States v. Lovett, 328 U.S. 303,

328 U.S. 316-317

Peters v. Hobby, 349 U.S. 331,

349 U.S. 352

Cafeteria Workers v. McElroy,

367 U.S. 886, 367 U.S. 898

Hesse V. Department of State

217 F.3d 1372, 1376 (Fed. Cir. 2000);

47 MSPR 680, 681, 684

Waters v. Churchill, 114 S. Ct. 1878

Handy v. U.S. Postal Service, 754 F.2d 335

(Fed. Cir. 1985)

Cosby v. United States 417 F.2d 1345,

1355, Ct. Cl. (1969)

Doyle v. Veterans Administration,

229 Ct.Cl. 261, 667 F.2d 70, 72 (1981)

Brewer v. U.S. Postal Service,

227 Ct.Cl. 276, 647 F.2d 1093, 1097 (1981)

_ cert. denied, 454 U.S. 1144,

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JURISDICTION

The judgment of the United States Court of Appeals

for the Federal Circuit was issued on June 10, 2010, and

the Petitioner's petition for rehearing and for rehearing

en banc was denied on September 03, 2010. This Court

has jurisdiction over this petition under 28 U.S.C. §

2101(c).

CONSTITUTIONAL and STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment provides, in pertinent part.

that “No Person shall ........ be deprived of life, liberty or

property without due process of law”.

5 U.S.C. § 7513(a) Under regulations prescribed by

the Office of Personnel Management, an agency may take

an action covered by this subchapter against an employee

only for such cause as wiil promote the efficiency of the

service.

5 U.S.C. § 7513(b)(1),(2), & (4) provides, in pertinent

part, An employee against whom an action is proposed is

entitled to (1) at least 30 days' advance written notice,

unless there is reasonable cause to beheve the employee

has committed a crime for which a sentence of

imprisonment may be imposed, stating the specific

reasons for the proposed action; (2) a reasonable time, but

not less than 7 days, to answer orally and in writing and

to furnish affidavits and other documentary evidence in

support of the answer; ... and (4) a written decision and

the specific reasons therefore at the earliest practicable

date.

STATEMENT OF THE CASE

The Petitioner in this case was a tenured federal

employee who had approximately 42-plus years of

continuous federal civil service.

Petitioner was employed by the U. S. Department of

Homeland Security (“DHS”) as a Deputy Comptroller for

the U. S. Coast Guard’s (“USCG’”), Integrated Support

Command (“ISC”) Miami, Miami, Florida. On November

2008, Petitioner’s supervisor and the Comptroller for the

ISC, Commander (CDR) Anthony Alarid, ordered

Petitioner to exchange his office with that of the Chief,

Budget and Accounting. This exchange would relocate

the Petitioner a distance of approximately 25 linear feet

and place the Petitioner at a location adjacent to Alarid’s

office. His supervisor set a deadline of December 1, 2008

for Petitioner to complete the exchange of offices.

On November 20, 2008, approximately an hour

before Petitioner was scheduled to end his workday CDR

Alarid confiscated the Petitioner’s workplace access and

security badge and office key without Alarid giving the

Petitioner any reason for his actions and without allowing

Petitioner to challenge Alarid’s actions. Based on

Alarid’s actions, Petitioner reasonably concluded he had

been constructively terminated and accordingly, on

November 29, 2008 prepared and submitted a Standard

Form (SF) 52 to the USCG personnel office, Washington,

D.C. requesting retirement effective December 1, 2008.

Petitioner wrote on his SF-52 that his reason for

requesting retirement was “Retirement requested due to

the imposition of constructive discharge conditions by

management.” Simultaneously, Petitioner submitted a

claim to the Merit Systems Protection Board alleging he

had been constructively terminated, among other things.

2

On March 9, 2009, the assigned administrative

judge held a jurisdictional hearing in Miami, Florida, at

which both Alarid and the Petitioner appearing Pro Se

testified as to the circumstances surrounding the

Petitioner's claim. The administrative judge found that

Apodaca had retired voluntarily and dismissed the appeal

for lack of jurisdiction. The Board denied the Petitioner’s

petition for review of the initial decision on July 24, 2009,

and the administrative judge’s decision became the final

decision of the Board. The Petitioner timely appeaied the

Board's final decision to the United States Court of

Appeals for the Federal Circuit (“CoA”).

The Petitioner had a compelling belief that the

administrative judge and the MSPB had not applied the

appropriate legal standard. The Petitioner’s belief was

based on the fact that these two administrative forums

never considered the Petitioner’s arguments. The

Petitioner has consistently argued that the (1) Petitioner

was not afforded his constitutionally protected right to

Due Process pursuant to 5 U.S.C. § 7513(b)(1) and “Free

Will” when his building access and security clearance

badge were confiscated nor when the Agency received the

Petitioner’s SF-52 citing “Retirement requested due to the

imposition of constructive discharge conditions by

management” as the Petitioner’s reason for requesting

retirement, (2) the Agency’s fanlure to follow its own

agency regulations pertaining to the “Agency’s Check In

and Check Out Procedures ” ISCMIAMIINST 5000.2 and

“the Seventh District’s Security Identification Badge

Policy” CGD SEVENINST 5512.2c, (3) the agency’s

violation of the Prohibited Personnel Practices and Merit

System Principles, 5 U.S.C. § 2302(b)(12) and 5 U.S.C. §

2301(b)(6) respectively; (4) the agency’s violation of

Section 6384 and 6385 of the Family Medical Leave Act

(FMLA); (5) the agency’s violation of the Privacy Act,

when on November 20-22, 2008, CDR Alarid falsely

informed his staff that the Petitioner had retired (RB, pg-

3-4); (6) the Time Pressure exerted on the Petitioner to

involuntary retire GQmmediate termination); (7) the

agency's inconsideration of the Petitioner’s traumatic

event (daughter’s Breast Cancer condition); and (8)

compelling the Petitioner’s mitigation of damages to

preclude an actual money loss of approximately $2,412.96

in salary. In his appeal to the Court of Appeals the

Petitioner basically argued these same issues he had

argued before the administrative judge and the MSPB.

The Court of Appeals affirmed the Board’s decision

basically on the same terms as the administrative judge

and the MSPB, although to some extent the CoA

paraphrases or interprets the facts erroneously. The CoA

also transposes and consolidates the facts without due

consideration of their affect as to timing. The following

are examples cited in the CoA decision:

On page 2 Background Section the CoA writes:

1. “Apodaca refused to change offices, informing Alarid

that he would rather retire than change his office.” This

statement is erroneous 1n that the Petitioner never

refused to exchange offices. The Petitioner simply stated,

“He would have to contemplate retirement in

order to avoid a repeat of the hostility previously

suffered. However, the Appellant advised CDR

Alarid that his decision to retire could not be

determined because it was contingent on

Appellant’s family psychological and financ?al

conditions relative to the Appellant’s daughter

Breast Cancer Condition and its personal

ramifications”. (Petitioner's MSPB Complaint)

2. “Apodaca then told Alarid that he would retare

effective January 3, 2009. However, following further

discussions between the two, Apodaca told Alarid that he

would retire on November 30, and that November 20

would be his last day at work as he intended to take leave

thereafter.” Petitioner avers that all the dates mentioned

were ail set forth by CDR Alarid during separate

conversations with the Petitioner. CDR Alarid

established these dates simply because the Petitioner

passively acquiesced. When CDR Alarid proposed these

dates the Petitioner did not argue with nor was he

disrespectful towards Alarid because he was concerned

that Alarid would accuse kim of being insubordinate. At

all times, it was Alarid that cajole and pressured the

Petitioner by proposing different retirement dates and

accusing the Petitioner of being unreasonable. It was

Alarid who became frustrated and told the Petitioner,

“Hell, you better retire on November 30, 2008”. (See

Alarid’s Affidavit)

In its Decision the CoA conflates and transposes the

facts in similar fasnion as done bythe administrative

judge and the MSPB. The CoA simply noted that the

issue had been correctly decided by the MSPB in this

case, reached the same conclusion. Most, if not all, of the

facts considerate by these tribunals are not relative to the

Petitioner's Constructive‘Discharge Claim. The CoA in

similar fashion doés not address the facts relevant to the

Petitioner’s Constructive Discharge Claim, e.g., Agency’s

failure to provide Petitioner due process, “free will’; follow

its regulations, violation of the Prohibited Personnel

Practices and Merit System Principles, violation of

Section 6384 and 6385 of the Family Medical Leave Act

(FMLA); the agency’s violation of the Privacy Act, inter

alia. {Supra}

In its Decision, the CoA outlines various facts, most

which are not relevant to the Petitioner’s Claim, others

that are either incompletely stated, mentioned but not

discussed, taken out of context, framed to support the

Government's case while others erroneously conclude the

Petitioner acted improperly. In one instance the CoA

mentions “We are not persuaded by Apodaca’s logic.”

The Petitioner avers that his logic is simple and

reasonable, based on the following facts: Ifin actuality,

the Petitioner had until December 1, 2008 to exchange

offices as ordered by his supervisor, but on November 20,

2008, his supervisor preemptively confiscates his

workplace access and security badge and keys which

effectively barred him from his workplace, the Petitioner

is effectively prohibited from meeting the December 1,

2008 deadhne. Furthermore, the Petitioner being a

family man with responsibility for his family economic

conditions reasonably determined, he had been

“constructively terminated” because the confiscation of his

badge and key was an adverse employment action which

infringe on the Petitioner’s constitutionally protected

vested right in his employment for which he was not

afforded “due process” and “Free Will” pursuant to the

Fifth Amendment and 5 U.S.C. § 7513(a).& (b) (1), (2), &

(4). This logic is supported by the relevant facts.

The facts in this case vividly confirm that CDR

Alarid’s confiscation of the Petitioner’s badge and keys

breached the Petitioner’s constitutionally protected vested

right in his employment without affording the Petitioner

due process and free will. This is similar to when the

Government is the first to breach a contractual right.

The Petitioner at all times acted properly, both

administratively and legally. It is universally and

empirically recognized that all “employees” will

contemplate “retiring” at some point in their lifetime. The

Petitioner assertion that he would contemplate

retirement was not a crime nor was it an action of such

gravity that would compel the Government to breach the

Petitioner’s constitutionally protected vested right in his

employment. Jn Loudermill, the Supreme Court held that

a proper balancing of the interests as set forth 1n

Mathews v. Eldridge, 424 U_S. 319, 338 (1976), requires

that, as a general rule, there be some form of

pretermination hearing for an employee who has

established that he has a property interest in the

retention of his position. In short, the Court reasoned

that the general governmental interest in unmediate

termination of the employee does not outweigh the

interests of the employee in retaining his employment and

in having an opportunity to present his side of the case.

"Even when the facts are clear, the appropriateness or

necessity of the discharge may not be; in such cases, the

only meaningful opportunity to invoke the discretion of

the decisionmaker 1s likely to be before the termination

takes effect." Loudermull, 470 US. at 543. In Arnett v.

Kennedy, 416 U.S. 134 (1974), this Court stated, we

sustained the validity of procedures by which a federal

employee could be dismissed for cause. They included

notice of the action sought, a copy of the charge, —

reasonable time for filing a written response, and an

opportunity for an oral appearance. Following dismissal,

an evidentiary hearing was provided. 416 U_S., at 142 -

146.

REASONS FOR GRANTING THE WRIT

As this Court has made increasingly clear, the Fifth

and Fourteenth Amendment of the Constitution require

the Government afford a tenured federal employee “Due

Process” when taking an adverse personnel against an

employee when the employee has a constitutionally

protected vested right in his employment and has a right

to “free will”. See following citations:

Board of Regents v. Roth, 408 U.S. 564 (1972), holds,

inter alia:(For "[w]here a person's good name, reputation,

honor, or integrity is at stake because of what the |

government 1s doing to him, notice and an opportunity to

be heard are essential."; citing Wisconsin Vv.

Constantineau, 400 U.S. 433, 400 U_S. 437. Wieman v.

Updegratf, 344 U.S. 183, 344 U_S_ 191; Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U_S. 123; United

States v. Lovett, 328 U.S. 303, 328 U.S. 316-317; Peters

v. Hobby, 349 U_S. 331, 349 U_S. 352 (DOUGLAS, J.,

concurring). See Cafeteria Workers v. McElroy, 367 U_S.

886, 367 U_S. 898. In such a case, due process would

accord an opportunity to refute the charge before

University officials.)

Cleveland Board of Education v. Loudermill, 470

U.S, 532, 542, 546 (1985), Hesse V. Department of

State 217 F.3d 1372, 1376 (Fed. Cir. 2000); 47

M.S.P.R. at 684 holds that at a minimum, “the tenured

public employee is entitled to oral or written notice of the

charges against him, an explanation of the evidence and

an opportunity to present (the employee's) side of the

story”. 47 M.S.P.R. at 681. 47M_S.P.R. at 680 citing the

application of the Cleveland Board of Education v.

Loudermiull 470 U.S. 582, 546, 105 S.Ct. 1487, 1495, 84 L.

Ed. 2d 494 (1985). Ad violated her due process right by

being predisposed against her, hampering her

presentation of the case and abusing his discretion

One of the main issues in this case that may require

review by this Court is the failure of Agency’s and the

lower Tribunals to recognize that what the Petitioner

stated and has argued 1s a constitutionally protected

issue. Waters, et. al. v. Churchill et. al. 114 S. Ct.

1878;128 L. Ed. 2d 686, (May 1994) We think employer

decision-making will not be unduly burdened by having

courts look to the facts as the employer reasonably found

them to be. It may be unreasonable, for example, for the

employer to come to a conclusion based on no evidence at

all. Likewise, 1t may be unreasonable for an employer to

act based on extremely weak evidence when strong

evidence 1s clearly available -- 1f for [*32] instance, an

employee 1s accused of writing an improper Ietter to the

editor, and instead of just reading the Ietter, the employer

decides what it said based on unreliable hearsay.

[5A}]}fan employment action 1s based on what an

employee supposedly said, and a reasonable supervisor

would recognize that there 1s a substantial likelihood that

what was actually said was protected, the manager must

tread with a certain amount of care. This need not be the

care with which trials, with their rules of evidence and

procedure, are conducted. It should, however, be the care

that a reasonable manager would use before making an

employment decision -- discharge, suspension, reprimand.

or Whatever else -- of the sort involved in the particular

case. JUSTICE SCALIA correctly points out that such

care is normally not constitutionally required unless the

employee has a protected property interest in her job,

post, at 688, see also Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 576-578, 33 L. Ed. 2d 548, 92S. Ct

2701 (1972); but we beheve that the possibility of

mnadvertently punishing someone for exercising her Firsi

Amendment rights makes such care necessary}

Another reason which may warrant the Court’s

review 1s the practice of an Agency using ambush,

concealment, and surprise. This practice must not to be

tolerated by the judicial system. In this case, the

Supervisor and the Agency’s Human Resource Officer

knew at least two-days in advance of their planned action

to confiscate the Petitioner's workplace and security

badge and keys yet they failed to provide “due process” to

the Petitioner. Additionally, over 30-days had elapsed

since the Supervisor had set forth his proposal on which

they relied for taking the Petitioner’s badge and key.

The legal review of this type of case (by its nature) 3s

limited by statue to the Merit System Protection Board

and the U.S. Court of Appeals for the Federal Circuit.

This limit review forum may create the potential for other

similar cases to be decided in similar fashion as the case

at bar which may result in improper or unfair review of

similar cases. This may cause other Petitioners to forgo

filing claims with these lmited forums or 1f similar cases

are filed with these limited forums may result in

Petitioners incurring legal costs needlessly.

The Agency, the MSPB and CoA relhed on subjective

evidence to reach their conclusions in this case. The

Agency's action was based solely on the Petitioner's

Supervisor being convinced the Petitioner would retire

even though the Petitioner had no submitted any required

written request or the usual SF-52 “Request for Personne!

Action’ requesting retirement as of the date his badge

and key was confiscated. This raises the question of

whether an Agency's “subjective testimony” meets the

“substantial evidence” and “totally of the circumstances”

standards ina manner sufficient to supersede the

constitutional protection of “due process” provided a

Petitioner by the Fifth and Fourteenth Amendments of

the Constitution to a tenured federal employee with a

constitutionally protected vested right in his employment

The Decisions of the CoA appear to be an anomaly in

that its Decisions in this case does not comport with their

or other precedents. See following citations

Handy v. U_S. Postal Service, 734 F.2d 335 (Fed.

procedural error (statutory or not) must be shown to be

10

harmful in precedent of this court, particularly, Doyle v.

Veterans Admimstration, 229 Ct.Cl_261, 667 F.2d 70, 72

C981), Brewer v. U.S. Postal Service, 227 Ct.Cl. 276, 647

F.2d 1093, 1097 (1981), cert. denied, 454 U.S. 1144, 102

Service, 697 F.2d 1078 (Fed. Cir. 1983).

Cosby v. United States 417 F.2d 1345, 1355, Ct. Cl.

(1969) in a concurring opinion by Judge Nichols

which was adopted by the Court states in Dictum (in

part):

“If an employee's continued presence in an agency is

regarded as undesirable, and if he tenders any piece

of paper purporting to be a resignation, the

temptation is to snatch at it, thus avoiding the

complex ritual and uncertain outcome of an adverse

action. It is, I believe, the duty of the personne!

officer nevertheless to scrutinize the paper with care,

and to reject it as a resignation if it states, clearly or

ambiguously, that the resignation is coerced. That

was not done here and this lawsuit followed, which in

my judgment defendant was lucky to win. A coerced

resignation is not a resignation at all. It is an

adverse action which is legally invalid for failure to

follow the procedures laid down in statutes and

regulations. McGucken v. United States, 407 F.2d

1349, 187 Ct.Cl. 284, cert. filed, 396 U.S. 894, 90

S.Ct. 190, 24 L.Ed.2d 170 (June 11, 1969).”

“Therefore, nothing decided in this case, as I read

it, Should be regarded as condoning any relaxation of

the vigilance required of the Civil Service

Commission and of personnel officers generally,

against the acceptance of coerced resignations,

whether actually coerced, or so stated in the course

of the employee's filling out the applicable form.”

1]

CONCLUSION

For the forgoing reasons, petitioners submit that this

Court should grant review in this case to reverse the

holding of the U. S. Court of Appeals for the Federal

Circuit with respect to Board’s finding that Apodaca’s

retirement was voluntary 1s supported by substantial

evidence and that 1t has considered Apodaca’s remaining

argument and finding them unpersuasive. Petitioner

would also ask this Court to remand the case to the Court

of Appeals for 1t to apply appropriate scrutiny under the

Fifth Amendment and this Court precedent.

Respectfully submitted,

hikes Ih Arde

Antonio M. Apodaca, Pro Se

14221 SW 146°"! Terrace

Miami, FI. 33186-7208

(305) 232-7024 Home Phone

(305) 498-7366 Cell Phone

tapodaca@bellsouth. net

NOTE: This disposition is nonprecedential.

GAnited States Court of Appeals

for the federal Circuit

ANTONIO M. APODACA

Petitioner,

Vv.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

2009-3293

Petition for review of the Merit Systems Protection

Board in AT0752090223-I-1.

Decided: June 10, 2010

ANTONIO M. APODACA, of Miami, Florida, pro se.

JEFFREY A. GAUGER, Attorney, Office of the General

Counsel, Merit Systems Protection Board, of Washington,

DC, for respondent. With him on the brief were JAMES M.

KISENMANN, General Counsel, and KEISHA DAWN BELL.

Deputy General Counsel.

APODACA v. MSPB 2

Before LOURIE, FRIEDMAN and MOORE, Circuit Judges.

PER CURIAM.

Antonio Apodaca appeals from the final decision of

the Merit Systems Protection Board (the “Board”) dis-

missing his appeal for lack of jurisdiction. Apodaca v.

Dep't of Homeland Sec., No. AT-0752-09-0223-I-1

(M.S.P.B. July 24, 2009) (“Final Order’). Because the

Board’s decision that Apodaca retired voluntarily is

supported by substantial evidence, we affirm.

BACKGROUND

Apodaca was employed by the Department of Home-

land Security as a Deputy Comptroller for the Coast

Guard’s Integrated Support Command (“ISC”) in Miami,

Florida. In November 2008, Apodaca’s supervisor and the

Comptroller for ISC, Anthony Alarid, ordered Apodaca to

move his office from its current location to a location

adjacent to Alarid’s office. Alarid set a deadline of De-

cember 1, 2008 for Apodaca to change his office. Apodaca

refused to change offices, informing Alarid that he would

rather retire than change his office. Apodaca then told

Alarid that he would retire effective January 3, 2009.

However, following further discussions between the two,

Apodaca told Alarid that he would retire on November 30,

and that November 20 would be his last day at work as he

intended to take leave thereafter. Alarid informed his

Command Staff Advisor (“CSA”) of Apodaca’s intentions

by e-mail.

On November 20, 2008, Apodaca cleaned his office,

shredded his personal writing pads, and disposed of files

stored in his office. That afternoon, Alarid collected Apo-

daca’s government identification badge and office keys

3 APODACA v. MSPB

from him. On December 1, 2008, Apodaca submitted his

retirement request form SF-52 to ISC, denoting an effec-

tive retirement date of November 30, 2008. On the SF-52,

Apodaca stated the reason for his retirement as the

“imposition of constructive discharge conditions by the

management.”

On December 30, 2008, Apodaca filed an appeal to the

Merit Systems Protection Board, claiming that his re-

tirement was involuntary. On March 9, 2009, the as-

signed administrative judge held a jurisdictional hearing

in Miami, Florida, at which both Alarid and Apodaca

testified as to the circumstances surrounding Apodaca’s

retirement. The administrative judge found that Apodaca

had retired voluntarily and dismissed the appeal for lack

of jurisdiction. The Board denied Apodaca’s petition for

review of the initial decision on July 24, 2009, and the

administrative judge’s decision became the final decision

of the Board. Apodaca timely appealed the Board’s final

decision to this court. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

DISCUSSION

The scope of our review in an appeal from the Board’s

decision is limited. We can only set aside the Board's

decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2)

obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by

substantial evidence.” 5. U.S.C. § 7703(c) (2000); see

Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed.

Cir. 2003). We review the Board’s jurisdiction without

deference. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,

1316 (Fed. Cir. 1998). However, “we are bound by the

AJ’s factual determinations unless those findings are not

APODACA v. MSPB 4

supported by substantial evidence.” Jd. Substantial

evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” McEn-

tee uv. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir.

2005) (quotation marks omitted).

Apodaca challenges the Board’s decision that he failed

to prove by a preponderance of the evidence his allega-

tions of coercion and duress by the agency so as to allow

the Board to exercise jurisdiction over his appeal. He

argues that his statements declaring his intentions to

retire were mere contemplations of retirement. He argues

that his responses to Alarid’s order to move his office were

unrelated to the events that occurred on November 20,

2008, leading up to his retirement. He contends that on

that day he was performing routine cleaning of his office

and preparing to take leave when Alarid confiscated his

badge and keys, thereby constructively discharging him.

He further contends that he did not return to work at any

time after that date because of the “malicious and unpro-

fessional manner” in which he had been treated. He

contends that the reason for submitting an SF-52 on

December 2, with an effective date of November 30, was

that he wanted to “mitigate his damages.” Moreover, he

argues, the agency failed to follow checkout procedures

required to terminate an employee. According to Apo-

daca, his retirement was forced upon him by the actions of

his supervisor and was not voluntary. Therefore, he

argues, the administrative judge and the Board erred in

dismissing his claim for lack of jurisdiction.

The Board responds that there is no evidence that the

agency imposed the terms of Apodaca’s retirement. It

argues that Apodaca was in control of his retirement

decision at all times, repeatedly rejecting his supervisor's

preferences in the matter and deciding himself both his

5 APODACA v. MSPB

retirement date as well his last day at the office. The

Board argues that contrary to Apodaca’s assertions,

Alarid pleaded with him not to retire or to at least stay

till January 2009 in order to allow the process of hiring a

replacement to be commenced. However, the Board

points out, Apodaca refused tc assist his supervisor in any

way or change his retirement date. The Board notes that

on November 20, Apodaca cleaned out his office. The

Board contends that Alarid asked him for his badge and

keys per the CSA’s guidance and because he understood

from Apodaca’s prior statements that Apodaca was not

returning to the facility after that date. The Board fur-

ther points out that Apodaca submitted his retirement

request voluntarily, at a time of his own choosing, and

with an effective date that he had previously mentioned

to his supervisor. The Board also notes that Apodaca

never attempted to return to work. Under these facts,

the Board argues, Apodaca cannot show that his retire-

ment was a product of coercion by the agency or was

otherwise involuntary. The Board urges us to affirm its

dismissal of Apodaca’s claim for lack of jurisdiction.

We conclude that the Board permissibly dismissed

Apodaca’s appeal for lack of jurisdiction. A decision to

resign or retire is presumed to be voluntary. Staats v.

U.S. Postal Serv., 99 F.3d 1120, 1123 (Fed. Cir. 1996). In

order to overcome the presumption of voluntariness, a

petitioner must make a non-frivolous allegation that the

resignation or retirement was the product of misinforma-

tion, deception, or coercion by the agency. Schultz v. Dep’t

of the Navy, 810 F.2d 1133, 1135 (Fed. Cir. 1987). To

establish involuntariness on the basis of coercion or

duress, a petitioner must show that (1) the agency effec-

tively dictated the terms of his retirement, (2) he had no

realistic alternative but to retire, and (3) his retirement

was the result of imnroper actions by the agency. Garcia

APODACA v. MSPB 6

v. Dep’t of Homeland Sec., 437 F.3d 1322, 13829 (Fed. Cir.

2006) (en banc). The test is an objective rather than

subjective one; an employee’s subjective feelings are

irrelevant. Middleton v. Dep’t of Defense, 185 F.3d 1374,

1379 (Fed. Cir. 1999).

On appeal, Apodaca primarily argues that, in finding

the agency’s actions justified, the administrative judge

improperly relied on his statements to his supervisor

leading up to November 20, 2008. He argues that his

statements of his intention to retire were mere contem-

plations, pertaining to what he terms the “Exchange

Office Situation” and were irrelevant to his “Constructive

Discharge Claim.” We are not persuaded by Apodaca’s

logic. Apodaca’s actions and words clearly demonstrated

that he did intend to retire and that his last day at the

facility was November 20, 2008. His supervisor relied on

his statements. The administrative judge was entitled to

find Alarid’s testimony credible. The e-mails exchanged

between Alarid and his CSA support the administrative

judge’s finding, which was based on substantial evidence.

The judge noted that Alarid’s testimony was also consis-

tent with other facts such as Apodaca cleaning his office,

packing his personal items and circling dates on his

calendar. Under such belief, it was proper for Alarid to

ask Apodaca to submit an SF-52. As a departing em-

ployee’s supervisor, Alarid was also required collect

Apodaca’s badge and keys. We agree with the Board that

Alarid’s actions were reasonable under the circumstances.

The administrative judge also reasoned that had Apo-

daca believed that he had been involuntarily discharged,

he could have easily refused to submit an SF-52. Apo-

daca’s argument that he submitted his retirement request

and did not return to work because of the hostile manner

in which he had been treated is not sufficient to satisfy

APODACA v. MSPB

~

the demanding legal standard of proving that the agency

coerced him to absent himself from work. See Garcia, 437

F.3d at 1329 (“[T]he doctrine of coercive involuntariness is

a narrow one[,] requiring that the employee satisfy a

demanding legal standard.” (quotation marks omitted)).

We find nothing in the evidence presented below to dem

onstrate that Apodaca was coerced into retirement. On

the contrary, we agree with the Board that Apodaca was

at all times in control of his retirement decision. ‘I'he

administrative judge found that the petitioner refused to

accept any of his supervisor's suggestions with regard to

his retirement and dictated the schedule of his departure

We agree with the administrative judge’s findings and

conclude that none of Apodaca’s allegations are such that,

if proven, would establish that a reasonable employee

confronted with the same circumstances would feel co

erced into retiring. See Middleton, 185 F.3d at 1379.

The Board's finding that Apodaca’s retirement was

voluntary is supported by substantial evidence. We have

considered Apodaca’s remaining arguments and find them

unpersuasive. Accordingly, we affirm the Board’s deci

sion that it lacked jurisdiction over Apodaca’s appeal.

AFFIRMED

COSTS

No costs.

United States Court of Appeals for the Federal Circuit

2009-3293

ANTONIO M. APODACA

Petitioner,

MERIT SYSTEM PROTECTION BOARD

Respondent

Petition for review of the Merit Systems Protection Board

in AT0752090223-I-1

ORDER

Note: This order is nonprecedential

United State Court Of Appeals For The Federal Circuit

ORDER

A combined petition for panel rehearing and for rehearing

en banc having been filed by the Petitioner, and the petition for

rchearing, having been referred to the panel that heard the appeal,

and thereafter the petition for rehearing en banc having been

referred to the circuit judges who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for panel rehearing be, and the

same hereby is, DENIED and it is further

ORDERED that the petition for rehearing en banc be, and

the same hereby is, DENIED.

[he mandate of the court will issue on September 10, 2010

FOR THE COURT

se a

Jan Horbaly

Clerk

Dated: 09/03/2010 Filed

U.S. Court of Appeals

for the Federal Circuit

SEP 03 2010

cc Antonio M. Apodaca

Austin M. Fulk Jan Horbaly

Clerk

APODACA V MSPB, 2009-3293

(MSPB — AT07523090223-I-1)

United States Court of Appeals for the Federal Circuit

O99. 30903

Petitioner

Ment Systems Protection Board

Respondent

JUDGMENT!

PPEAL fT Merit Syst 1 Protect hoard

t } Lei

} ‘ )( i)

Mi]

a Y ORDER OF THE COURT]

an Hiorbaly. (Clerk

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

Antonio M. Apodaca Docket Number

Appellant, AT-0752-09 0223-I-!

v.

Department of Homeland

Security

Agency.

Antonio M. Apodaca, Miami, Florida, pro se.

Lt. Robert Pirone, Norfolk, Virginia, for the agency.

BEFORE

Garry Wade Klein

Administrative Judge

INITIAL DECISION

The hearing in this case took place at Miami, Florida on

March 9, 2009. A decision was announced at the hearing and it is

fully documented in the attached partial hearing transcript. The

partial transcript contains the complete decision and related

reasoning and legal references. The date of this transmittal

document (not the date of the hearing) is the start date used to

compute the finality date highlighted below in the appeal rights

paragraphs.

DECISION

The appeal is DISMISSED.

FOR THE BOARD “—_

Garry Wade Klein

Administrative Judge

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

Antonio M. Apodaca,

Appellant

V. Docket No:

AT-0752-09-0223-1- |

Department of

Homeland Security

Agency

BENCH DECISION

ta

APPEARANCES

FOR THE APPELLANT

ANTONIO M. APODACA

14221 SW 146 TERRACE

MIAMI, FLORIDA 33186-7209

FOR THE AGENCY:

lt. ROBERT PIRONE

USCG MLCLANT (lg)

300 EAST MAIN STREET, SUITE 400

NORFOLK, VA 23510

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

oe

P-R-O-C-E-E-D-I-N-G-S

2:10p.m.

ADMINISTRATIVE JUDGE: This will be a

reading of a Bench Decision. The Bench Decision 1s not

the final decision. Once we get the transcript from the

court reporter, my office will issue another document

which will actually submit the transcript of the Bench

Decision to you. That copy will also contain all your

Appeal Rights. Your Appeal Rights will not run until that

document is issued. So the Bench Decision does not begin

the appeal Rights right at this point.

Also, there will be no argument, objections or

discussions during the reading of the Bench Decision or

after it.

Do the parties understand that”

LT. PIRONE: Understood, Your Honor.

MR. APODACA: Yes.

BENCH DECISION

INTRODUCTION

ADMINISTRATIVE JUDGE: On December 30+,

2008, the Appellant filed his Board Appeal alleging his

retirement on November 30, 2008 was involuntary. The

Appellant was granted a Jurisdictional Hearing, which

was conducted on March 9t», 2009 in Miami, Florida. For

the reasons stated below, the Appellant’s Appeal is

DISMISSED for lack of jurisdiction.

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

JURISDICTION

GENERAL LEGAL STANDARDS

The Board’s jurisdiction is not plenary; it is lmuted

to those matters over which it has been given jurisdiction

by law, rule or regulation. Maddox v. Merit Systems

Protection Board, 759 F2d 9 at 10 (Fed. Cir. 1985). When

a question is raised regarding the Board’s jurisdiction, the

employee filing the appeal has the burden of proof by a

preponderance of the evidence. See 5 CFR Section

1201.56(a) (2) (2008). Preponderant evidence is defined to

mean that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as

sufficient to find that a contested fact is more hkely true

than not. See 5 CFR Section 1201.56(c) (2) (2004).

Generally, a resignation or retirement ts presumed

to be a voluntary act and, therefore, beyond the board's

jurisdiction. See for example, Hurwitz v. Department of

the Army, 61 MSPR 436 at 439 (1994); Gettings vs.

Department of the Air Force, 48 MSPR 502 at 509 (1991).

The presumption of voluntariness may be rebutted by

evidence showing that the resignation or retirement was

the result of duress, coercion or otherwise involuntary.

The mere fact that an employee is faced with

unpleasant choices does not rebut the presumed

voluntariness of the ultimate choice to retire. Locke v. US

Postal Service, 61 MSPR 283 at 287 (1994); see in accord

Schultz v. US Navy, 810 F2d 1133 at pages 1136-37 Fed.

Cir. 1987). Rather, for a retirement in such

circumstances to be considered involuntary and therefore

appealable as a constructive removal, the Appellant must

establish that the Agency did not have reasonable

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

grounds for is actions. Locke 61 MSPR at 288: see also

Schultz 810 F2d at 1136. The appellant failed to do so.

The appellant was the Deputy Controller for the

Integrated Support Command Miami Coast Guard. He

held this position since approximately 2001 or 2002. In

September of 2008, Anthony Alarid became the

Comptroller of the Integrated Support Command 1n

Miami and the Appellant’s first Level Supervisor. Mr.

Alarid testified that when he reported to the ISC Miami

he reviewed the office layout and determined that he

wanted his Deputy Comptroller to be in the office

physically located next to him. He believed this to be a

more professional environment and would increase

communication between him and the Appellant, his

Deputy. Mr. Alarid also beheved it would place Ms.

Lombardi in closer contact with her staff.

When Mr. first discussed with the Appellant in

October, 2008 regarding switching the offices, the

Appellant said he would retire before switching offices.

Mr. Alarid then contacted the Human Resources Office

regarding whether he could order Employee's to switch

offices. Human Resources told him that it was his

decision.

A week later Mr. Alard notified the Appellant he

had made his decision and the Appellant was to switch

offices by December 1°t, 2008. The Appellant responded

he ‘would retire’ the day before the effective date of the

office switch.

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

6

A series of conversations ensured between Mr.

Alarid and the Appellant regarding the Appellant’s

statement he ‘would retire’. The Appellant admitted that

Mr. Alarid begged him not to retire and even offered to

give up his office to the Appellant and Mr. Alarid would

move to Ms. Lombardi’s office. The appellant also

testified that during these conversations he twice circle a

date on his calendar in front of Mr. Alarid stating this

was his retirement date. The second time he circled

November 30%, 2008 as his date of retirement. The

Appellant also testified he circled the last day he would be

in the office, which was November 20», 2008.

On November 20**, 2008 Mr. Aland testified he saw

the Appellant shredding and throwing out documents. He

also saw the Appellant packing up his personal items.

And, convinced that the Appellant was retiring and

having received instructions from the Human Resources

Office to get the Appellant was in the office. Mr. Alarid

asked the Appellant for these items. He also told the

Appellant he; “didn’i have to go out lke this”, to which

the Appellant responded; “No, I’m done”.

Even though the Appellant admitted to circling the

date for his retirement and circling the last day he would

be in the office on the calendar, the Appellant testified he

told Mr. Alarid he was only contemplating retirement.

Mr. Alarid testified that the Appellant never said he was

contemplating, instead he testified that the Appellant

said that he intended to retire on November 30%. Mr.

Alarid’s testimony on this issue 1s credible. It is

consistent with his Affidavit in the file. It is consistent

with the e-mails at Tab G of the Agency file and is

internally consistent.

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

Additionally, the appellant's cleaning out of his

office, packing up his personal items and circling dates on

the calendar are also consistent with Mr. Alarid’s

testimony.

I further find that Mr. Alarid’s actions with regard

to asking the Appellant for his SF-50 wee reasonable. Mr.

Alarid wanted to get a replacement for the Appellant as

quickly as possible and hopevully before the Appellant

left. Human Resources had indicated it was best to have

a Retirement SF-50 from the Appellant to do this.

Similarly, I find Mr. Alarid’s actions with regard to

collecting the Appellant’s badge and keys on November

20* were reasonable, since this was the Appellant’s last

day in the office.

I find the Appellant’s retirement was voluntary. I

find that the A»pellant did not have a reasonable belief

that Mr. Alarid had terminated his employment on

November 20¢t' for the same reason that Mr. Alarid’s

actions were reasonable.

Additionally, if the Appellant actually believed he

was terminated on November 20* he would not have

submitted a Resignation SF-50 indicating he was retiring

on November 30th. There would have been no reason to do

so. The Appellant stated that he was mitigating his

damages. If the Appellant had been constructively

terminated on November 20, he could not have then

voluntarily moved his retirement to November 30" as he

actually did.

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

In summary, I find that the Appellant has not

proven by a preponderance of the evidence that his

retirement was involuntary.

Finally, I note that the Appellant’s allegations of

prohibited discrimination are insufficient to establish

Board jurisdiction in the absence of an otherwise

appealable action. See Cruz v. Department of the Navy,

934 F2d 1240 at pages 1245 (Fed Cir. 1991) (en banc) (the

Board has not granted jurisdiction over discrimination

claims unaccompanied by an appealable action over which

the Board has jurisdiction); Also see Wren v. Department

of the Army, 2 MSPR1 at page 2 (1980) affirmed, 681 F2d

867 at pages 871-73 (D.C. Cir 1982) (5 United States Code

2302(b) is not an independent source of Board

jurisdiction).

For the reasons stated above the appeal is

DISMISSED for lack of jurisdiction.

The record is closed.

(Whereupon, the proceedings were concluded at

2:20p.m.

KEKEKEKKEKEKEKEKKKEREKEKEKEEE

NANCY WEIR REPORTING SERVICES

P.O. BOX 6033 LAKE WORTH, FLORIDA 33466

561/967 2073 FAX 561/433 8026

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

Antonio M. Apodaca Docket Number

Appellant, AT-0752-09 0223-I-1

v.

Department of Homeland Date: July 24, 2009

Security

Agency.

Antonio M. Apodaca, Miami, Florida, pro se.

Lt. Robert Pirone, Esquire, Norfolk, VA, for the agency.

BEFORE

Neil A. G. McPhie, Chairman

Mary M. Rose, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review in this

case asking us to reconsider the initial decision issued by

the administrative judge. We grant petitions such as this

one only when significant new evidence is presented to us

that was not available for consideration earlier or when

the administrative judge made an error interpreting a law

or regulation. The regulation that establishes this

standard of review is found in Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. §

1201.115).

After fully considering the filings in this appeal, we

find that a question exists regarding the timeliness of the

appellant’s petition for review. We have not decided that

issue because we conclude that there is no new, previously

unavailable, evidence and that the administrative judge

made no error in law or regulation that affects the

outcome. 5 C.F.R. § 1201.115(d). Therefore, we DENY

the petition for review. The initial decision of the

administrative judge is final. This is the Board’s final

decision in this matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the nght to request the United States

Court of Appeals for the Federal Circuit to review this

final decision. You must submit your request to the court

at the following address:

United States Court of Appeals

For the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later

than 60 calendar days after your receipt of this order. If

you have a representative in this case, and your

representative receives this order before you do, then you

must file with the court no later than 60 calendar days

after receipt by your representative. If you choose to file,

be very careful to file on tame. The court has held that

normally it does not have the authority to waive this

statutory deadline and that filings that do not comply

with the deadline must be dismissed. See Pinat v. Office

of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to

appeal this decision to court, you should refer to the

federal law that gives you this right. It is found in Title 5

of the United States Code, section 7703 (7 U.S.C. § 7703).

You may read this law, as well as review the Board’s

regulations and other related material, at our website,

http://www.mspb.gov. Additional information is available

at the court’s website, www.cafc.uscourts.gov. Of

particular relevance 1s the

court’s “Guide for Pro Se Petitioners and Appellants,

which is contained within the court's Rules of Practice

and Forms 5. 6. and 11.

FOR THE BOARD a: wae

Willham D. Spencer

Clerk of the Board

Washington, D. C

CERTIFICATE OF COMPLIANCE

No.

Antonio M. Apodaca,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

As required by Supreme Court Rule 33.1(h), I certify that

the petition for a writ of certiorari contains 3208 words,

excluding the parts of the petition that are exempted by

Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on December 01, 2010

Antonio M. Apodaca, Pro Se

14221 SW 146TH Terrace

Miami, FL 33186-7208

(305) 232-7024 (Home Phone)

(305) 498-7366 (Cell Phone)

tapodaca@bellsouth.net

CERTIFICATE OF SERVICE

I, certify that I mailed the attached Petition for

Writ of Certiorari this 02°4 day of December 2010 to each

of the following:

Merit Systems Protection Board

Jeffrey Gauger, Esquire

U.S. Merit Systems Protection Board

1615 M. Street, N.W.

Washington, D. C. 20419

Solicitor General of the United States

Solicitor General of the United States

Room 5614

U.S. Department of Justice,

950 Pennsylvania Ave., N. W.

Washington, D.C. 20530-0001

December 02, 2010 ' Aniteyco Ctyod att)

Date) Antonio M. Apodaca, Pro Se

14221 SW 146 Terrace

Miami, FL 33186-7208

(305) 232-7024 (Home Phone)

(305) 498-7366 (Cell Phone)

tapodaca@bellsouth.net